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Territorial extension and case law of the Court of Justice: Good administration and access to justice in procurement as a case study†

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      Abstract

      This paper uses EU trade policy to explore some of the legal implications of the territorial extension or extraterritoriality of EU public procurement law. The paper’s starting position is that, with this policy and regulatory approach, the EU pursues two main goals: first, to further global standards of human rights protection and, second, to further regulatory convergence toward its own procurement standards. The paper concentrates on the pursuit of this second goal and, in particular, on the implications of such territorial extension of EU procurement law for the case law of the Court of Justice on good administration and access to justice, as recognised in the Charter of Fundamental Rights of the European Union. The paper concentrates on public procurement because of its relevance in free trade agreements between the EU and third countries, as well as the relevance of legislative and case law requirements concerning procurement remedies. The paper assesses both the outward and inward implications of the territorial extension for the Court of Justice’s case law. The discussion in the paper also raises general issues concerning procedural design and the consideration of foreign law by the Court of Justice in different settings.

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      Reader in Economic Law, University of Bristol Law School, Bristol BS8 1RJ, UK
      Author notes
      [†]

      A previous version of this paper was presented under the title ‘An ever-changing scope? The expansive boundaries of EU public procurement rules, extraterritoriality and the Court of Justice’ at the research workshop ‘Extraterritoriality of EU Law & Human Rights after Lisbon: Scope and Boundaries’ held at the Sussex European Institute on 13–14 July 2017. The original version of the paper is available at https://ssrn.com/abstract=3000256. I am grateful to all participants in that workshop for useful feedback and suggestion on how to improve the paper, and in particular to Vassilis Tzevelekos, Samantha Velluti, Kamala Dawar, Joanne Scott and Clair Gammage. I also benefitted from comments on that first draft from Grith S Ølykke, and further discussions with Pedro Telles. The paper has evolved significantly since that first draft and, in changing its orientation and refining the international public law, comparative law and human rights aspects of the discussion, I have immensely benefitted from the feedback I received from my colleagues at the European, Human Rights and International Law primary unit of the University of Bristol Law School after a presentation I gave on 20 November 2017, and in particular from the generous insights and challenging questions of Tonia Novitz, Sofia Galani, Shreya Atrey, Phil Syrpis, Alan Bogg, Steven Greer, Jule Mulder, Michael Naughton, Tomaso Ferrando, Julian Rivers, Jonathan Hill, and Eirik Bjorge. I am also indebted to Jane Rooney for discussion on issues of extraterritoriality. Finally, I am also grateful to an anonymous reviewer of EWLR for suggestions on how to polish the final version of the paper. The standard disclaimer applies, and any remaining errors are solely my responsibility.

      Journal
      EWLR
      Europe and the World: A law review
      Eur. World
      UCL Press
      2399-2875
      10 October 2018
      : 2
      : 1
      10.14324/111.444.ewlj.2018.04
      EWLR-2-4
      © 2018, Albert Sanchez-Graells.

      This is an open access article distributed under the terms of the Creative Commons Attribution License (CC BY) 4.0 https://creativecommons.org/licenses/by/4.0/, which permits unrestricted use, distribution and reproduction in any medium, provided the original author and source are credited • DOI: https://doi.org/10.14324/111.444.ewlj.2018.04.

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      Pages: 18
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      A Sanchez-Graells, ‘Territorial extension and case law of the Court of Justice: Good administration and access to justice in procurement as a case study’ [2018], 2( 1): 4. Europe and the World: A law review [18]. DOI: https://doi.org/10.14324/111.444.ewlj.2018.04.

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